Parliament can easily fix the citizenship debacle

Kim Fischer 12 February 2018 51
Australian Citizenship

A messy State of affairs: What can be done to resolve the citizenship crisis?

As the citizenship crisis rolls on, our Federal politicians need to elevate the debate beyond technical nuances and find a real solution.

A simple bipartisan agreement to amend the Electoral Act 1918, preventing spurious referrals, allowing for statutory declarations, and providing clear instructions on the appropriate interpretation of section 44 is entirely constitutional and requires no referendum to enact.

I propose two common-sense rules that the Federal Parliament should legislate.

First, if you were born in Australia and are an Australian citizen, the ancestry of your parents should never be grounds for disqualification.

Second, people who nominate to run for Parliament must sign a statutory declaration that they will not acknowledge or seek benefits from any dual citizenship. Elected members should be granted a six month grace period after election to check for and formally renounce any citizenship of their past countries of residence.

These rules are still more stringent than the rules for State & Territory Parliaments, who place no restrictions on dual citizenship at all.

But let’s take a step back.

Countries often make retrospective changes to their rules of citizenship. For example, since 1948 the UK has significantly altered citizenship entitlements no less than 15 times, often with specific time periods and exemptions. Many of those affected are not aware of the changes.

Our politicians should have been united in their recognition of the unworkability of our eligibility rules. They chose not to make a positive bipartisan statement about the diverse ancestry of our citizens. They failed to clearly state that Australians should not be searching through the ancestry of others to disqualify them from Federal Parliament.

Instead, every party sought to gain advantage for themselves. Our representatives and nominees were forced to trawl through the history of their parents and grandparents. Seven Senators and three MPs have resigned or been found ineligible by the High Court due to their citizenship, despite zero benefit to Australia’s governance or integrity.

This is not a new problem. Since at least 1980, there have been at least five attempts to hold a referendum to amend section 44. Our federal members and senators nearly unanimously recognise that its wording is archaic and unjust. As Senator Robert Ray put it in 2003, “of all those that have fallen foul of section 44, none was, in fact, guilty; it was always a technical breach. None was in a position in which they owed actual allegiance to another country; none was in a position where they could have been suborned on economic grounds—and that is absolutely clear.”

Reluctance for a referendum stems partly from the fact that most Australians agree with the principle of loyalty to Australia that section 44 espouses. At the same time, most people agree that there was no breach in spirit by those forced to quit, as seen with the recent by-election results.

The problem is that the High Court has repeatedly applied a black-letter law approach to disqualification that defies common-sense interpretations.

It is plainly ridiculous to require Australian-born citizens to write to a country in a language they have never spoken, or for adoptees to seek out biological parents they have never met to avoid falling foul of this law. Yet that is the situation as it stands today. How can we have a fair go when people are literally being judged by who their parents were?

A referendum to fix this state of affairs would be ideal. Failing that, a viable legislative solution exists today. Section 47 of the Constitution allows the Parliament to set any means it likes to resolve disputed eligibility. There is no obligation for the High Court to be involved at all.

Our politicians can fix this mess. The bickering over section 44 of the Constitution for partisan advantage must stop. The system we have is manifestly inadequate. If things are left as they are now, the same scenario will continue to play out again and again in years to come.

Kim Fischer is a social commentator and ran as a Labor candidate for Ginninderra at the 2016 ACT election.

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51 Responses to Parliament can easily fix the citizenship debacle
James Augustinsen James Augustinsen 8:37 am 16 Feb 18

In the late 60s i approached local politicians ( Frank Stewart ) about abolishing death duties this eventually happened , anything can be changed in a way to suite circumstances.

    M.J. Leonard M.J. Leonard 10:13 am 16 Feb 18

    Unlike section 44, amending/abolishing death duties doesn't require a referendum.

    James Augustinsen James Augustinsen 1:17 pm 16 Feb 18

    Read the bottom sentence

    M.J. Leonard M.J. Leonard 2:22 pm 16 Feb 18

    Yes, I read it. And?

    Kim Fischer Kim Fischer 2:45 pm 16 Feb 18

    I don’t believe this requires a referendum either.

    M.J. Leonard M.J. Leonard 11:04 am 17 Feb 18

    Kim Fischer You have said that. Your solution though is simplistic. Addressing this by effectively saying 'The High Court's interpretation in s44 matters is too black letter; therefore let's legislate for a process that stops those cases coming before it' isn't going to work.

James Augustinsen James Augustinsen 8:30 am 16 Feb 18

An amendment should be put in place giving the politicians 3mths to sort out their status or then their removal from office. This would give everyone breathing space and a chance for parliament to continue without to much disruption and get on with the job they were put into in the first place.

David Robinson David Robinson 9:00 pm 14 Feb 18

The Constitution section 44 will never be changed, politicians should know by descent, very simple so do not dimish to diminishing our laws Straya does not allow non Australians to run our country.

    Kim Fischer Kim Fischer 10:00 pm 14 Feb 18

    Great point!

    Kim Fischer Kim Fischer 6:57 am 15 Feb 18

    It would be awful is you let an Australian born person whose grandma was born in Britain sit in Federal Parliament. Scandalous!

    M.J. Leonard M.J. Leonard 10:36 am 15 Feb 18

    There is nothing that stops an Australian-born person whose grandparent was born in Britain sit in Federal Parliament.

    Kim Fischer Kim Fischer 2:08 pm 15 Feb 18

    Equal before the law depending on where gran was born. If she was born overseas, you have to pay a large fee, just to stand! Bad luck if you are not elected.

    M.J. Leonard M.J. Leonard 4:13 pm 15 Feb 18

    Kim Fischer Yes, you have to pay a fee. A whole $550 you were saying? And before that you had all the benefits of dual citizenship, which a lot of Australians don't have. What were you saying about equal before the law?

    Kim Fischer Kim Fischer 4:36 pm 15 Feb 18

    Blen Carmichael you may not have even known you were a dual citizen until you found out it was a problem if you were to stand for election. Clearly your point is: its the law! My point is: yes, lets adhere to it, once you get elected. And it can be strengthened through parliament!

    David Robinson David Robinson 6:07 pm 15 Feb 18

    We are really going around in circles now, the simple fact is our Constitution is solid, and even though I don't like John Howard it was good that he stopped Kiwis coming through the back door to Straya.

mcs mcs 10:29 am 14 Feb 18

Why do we need to make it easier for politicians to comply?

While it may be complex in some circumstances to find out if your a dual citizen or not (given the vague approach in other countries), it doesn’t mean we should ‘dumb down’, the broad principle.

I would argue a comfortable majority of Australians would consider it is a reasonable requirement for politicians to demonstrate that, as serving Members of Parliament (or prospective members), they only have a commitment to this country and this country alone in undertaking that duty.

Being a politician means you are dealing with far more complex matters day to day than this. I can’t see why we need to dumb this down so politicians can comply – how about wannabe politicians/politicans pull their finger out, and do what is expected of them for once.

The current approach doesn’t disenfranchise people, as everyone has the ability to renounce whatever other citizenships they hold and run for office – if there is any doubt in that space, it should be one of the first things that people look into before running for public office at the Commonwealth level.

Nothing is stopping them from doing that. Suggesting it costs a lot of money is also a furphy – running a successful campaign costs a shed load more than what it will ever cost to renounce any other citizenship one holds. Oh but hang on a minute – the wannabe politician won’t be able to claim that back through public funding, will they?

Garfield Garfield 7:34 am 14 Feb 18

Why not change the law so as to disallow dual citizenship? When new immigrants become Australians they simultaneously renounce all other citizenships and acknowledge that taking on another country’s citizenship in the future would automatically renounce their Australian citizenship. Similarly, Australians born here affirm their Australian citizenship once they become adults and acknowledge that they’d be renouncing it if they take on another country’s.

Tim Cole Tim Cole 5:57 pm 13 Feb 18

Why don't we take another tack and remove dual citizenships? Either you're an Australian or not. We are one of the more generous countries when it comes to this.

    Kim Fischer Kim Fischer 7:14 pm 13 Feb 18

    It wouldn’t solve the problem, because your citizenship is determined by the other country’s laws.

    John Garvey John Garvey 9:16 pm 13 Feb 18

    Yes, dual citizenship often has nothing to do with Australian law. Also, such an idea goes against modern multi-nationalism, or internationalism. The current constitution disenfranchises millions of Australians from participating in federal politics. It is undemocratic, which is pretty much as originally designed, to only include white people from the British Empire.

    Kim Fischer Kim Fischer 9:42 pm 13 Feb 18

    Exactly. Spot on.

    Sam Watson Sam Watson 9:49 pm 13 Feb 18

    Kim Fischer good discussion point for this weeks first class of the semester in Constitutional Law 🤔

    Kim Fischer Kim Fischer 10:03 pm 13 Feb 18

    Sam Watson Yeah, it’s interesting. Section 47 is the key. It allows Parl to set up the Court of Disputed Returns which is a LEGISLATIVE function conferred on the High Court, not a constitutional.

    M.J. Leonard M.J. Leonard 10:10 pm 13 Feb 18

    John Garvey "The current constitution disenfranchises millions of Australians from participating in federal politics." That's ridiculous. I'm a dual citizen who accepts that I must renounce my overseas citizenship if I wish to run for Parliament. I am not "disenfranchised".

    Kim Fischer Kim Fischer 10:30 pm 13 Feb 18

    It should be that you have to be an Australian citizen to nominate, and take reasonable steps to renounce AFTER you are elected. Why get rid of everything for a chance to run and lose. It’s costly on many fronts ($550 to apply to renounce UK citizenship, for example). These laws are a deterrent for people who might otherwise want to run and that is why it disenfranchises people.

    John Garvey John Garvey 10:34 pm 13 Feb 18

    Yes you are. Because your choice to run is dependent on you getting rid of your dual citizenship. If I wanted to run I would have to resign my job and renounce my dual citizenship. Many people like me would think twice about that. Especially since I would be unlikely to be elected. Hence it maintains the two party system where candidates are "looked after". You have to be part of the system to run in it. It is the same as in the USA where black people are disenfranchised by making them wait for hours to vote during work time! Sure they can still vote....

    Kim Fischer Kim Fischer 11:36 am 14 Feb 18

    Sam Watson let us know how the discussions go. I am interested.

    M.J. Leonard M.J. Leonard 4:46 pm 14 Feb 18

    I am disenfranchised in the sense that I have to do what every candidate has to do - i.e. comply with section 44? How does that make sense?

    Kim Fischer Kim Fischer 5:49 pm 14 Feb 18

    Blen Carmichael it dissuades people from running because they may not afford the fees. Section 44 tries to ensure no treason. I think you can comply with it within the first year of your election. When you know for sure you are in.

    Kim Fischer Kim Fischer 5:51 pm 14 Feb 18

    The job of a politician is to update the rules when they are out of date. No need for a referendum. No need to change section 44. Just make it relevant to today’s world.

    Tim Cole Tim Cole 6:29 pm 14 Feb 18

    You can't change the constitution by legislation unless the constitution actually has provision for that.

    No side of politics has the intestinal fortitude to take it to a referendum and test your theory, but I honestly don't think it would pass at the moment.

    Kim Fischer Kim Fischer 8:27 pm 14 Feb 18

    Tim Cole section 47 is the provision to pass it through parliament. That is my argument.

    Tim Cole Tim Cole 9:30 pm 14 Feb 18

    You've misinterpreted how that section works. It does not nullify Section 44 or rule on the eligibility of Members and Senators.

    In the event of an electoral dispute, such as missing ballot papers or a close result as examples, the candidates can dispute the outcome.

    As the Constitution indicates, prior to the establishment of the Commonwealth Electoral Act (1918), disputes would have been decided by either the House or the Senate. Once the Act received Royal Ascent, it replaced Section 47 of the Constitution.

    This does not apply to Section 44, where there is no provision for an act of Parliament to replace the Constitution.

    The only way to remove s44.1 is to hold a referendum.

    Kim Fischer Kim Fischer 9:51 pm 14 Feb 18

    Section 47 doesn’t say any of that. They are your words. I choose to interpret it like section 46. No one has to pay 100 pounds per day because it states ‘until the parliament otherwise provides...’ Section 47 is a larger version of that. The Court of Disputed Returns - the legislative replacement for s.47 is there because s.47 allows it. The Court is established through legislation and something else could replace it through legislation. Just as the 100 pounds (s46) was not removed through referendum, but through legislation.

    Tim Cole Tim Cole 9:59 pm 14 Feb 18

    You can choose to interpret all you like. There are no fewer than 15 other individual sections of the Constitution that specify "until otherwise provisioned by the Parliament..." or suchlike. Where the "Founding Fathers" wanted the Parliament to override the Constitution they have specified. Section 44 is not one of those sections. It will require a referendum to change it.

    Kim Fischer Kim Fischer 10:11 pm 14 Feb 18

    Why dismiss the key words? I agree a referendum is better. But section 47 allows parliament to provide otherwise on the qualification of a Senator or Reps member.

    Tim Cole Tim Cole 10:32 pm 14 Feb 18

    No, S47 is about disputed election results, not about eligibility. You can't use one section to contradict another.

    Your interpretation of dispute is too broad.

    Also, if you think about it, the two main parties are so hell-bent on holding on to power, don't you think that they would have co-operated to pass such a law before this debate blew up in the middle of last year? If you look at the Hansard, you'll see that Labor and Liberal vote together more often than not. They definitely work together when it's in their interests. If they could have, they would have!

    Kim Fischer Kim Fischer 11:00 pm 14 Feb 18

    I think in this case they didn’t work together because each party thought it could throw the other under the bus. See the word ‘qualification’ in s.47. BTW s76 parliament gives the High Court the authority to decide constitutional matters.

Lyle Cameron Lyle Cameron 4:49 pm 13 Feb 18

Call me pessimistic, but I simply don’t trust politicians to legislate their way around the constitution like that, even if it could be done. Do as you suggest and soon enough you’d see legislation exempting politicians from penalties for making false stat dec’s or some such. Look at how they legislated their way around the penalty in the constitution for breaching section 44. Nope, the constitution is in a fine state. Abiding by it is a relatively simple matter in all but the most complex questions of citizenship. All Barnaby had to do was a 30sec check on the NZ gov’t website to find he was a citizen by descent, and it’s clear he simply couldn’t be bothered.

    Kim Fischer Kim Fischer 5:04 pm 13 Feb 18

    Some countries are easy to find your status, others are not. Some countries no longer exist. You may need translations etc... Politicians make law, that is their job. Stat dec is a suggestion. Lots of things can be done. I don’t think anyone has been charged with treason under section 44, which, you’d think, is the intent.

    Kim Fischer Kim Fischer 5:08 pm 13 Feb 18

    I wonder if the members of the Court of Disputed Returns would be ok under Section 44? High Court of Australia 🤔

Blen_Carmichael Blen_Carmichael 2:40 pm 13 Feb 18

>>A simple bipartisan agreement to amend the Electoral Act 1918, preventing spurious referrals, allowing for statutory declarations, and providing clear instructions on the appropriate interpretation of section 44 is entirely constitutional and requires no referendum to enact.<>The problem is that the High Court has repeatedly applied a black-letter law approach to disqualification that defies common-sense interpretations.<<

Okay, you don't like the High Court's interpretation. But to say it "defies common-sense interpretations" is biased criticism. What does defy common sense is that *all* those faux MPs/Senators who've been thrown out of Parliament for breaching section 44 were appointed well after the landmark case of Sue v Hill (1999). Is it too much to expect that parliamentary candidates at least a passing knowledge of the of their constitutional eligibility at the time they nominate?

In effect you're saying there's a convenient way to ensure section 44 cases avoid the pesky scrutiny of the High Court. As for that institution, it – like any other court – jealously guards its jurisdiction against any encroachment. How do you think your proposed legislation would hold up if it were the subject of a constitutional challenge?

Geoffrey John Randal Geoffrey John Randal 2:20 pm 13 Feb 18

If people are looking to become lawmakers it is reasonable to expect that they do what’s necessary to comply with the law, especially supreme law (the constitution). If they seek exemptions for themselves how can they demand compliance by others?

    Kim Fischer Kim Fischer 4:17 pm 13 Feb 18

    The law is over 100 years old and is not a prerequisite for eligibility by other Australian parliaments. Countries change their rules frequently. It is strange that an Aus born citizen might be ineligible to run for parliament because of a new law in another country that their grandparent was born in and they haven’t visited.

    Geoffrey John Randal Geoffrey John Randal 6:53 pm 13 Feb 18

    That’s today’s world: complicated and interconnected.

    Tom Porter Tom Porter 7:02 pm 13 Feb 18

    Kim Fischer there are constitutions a lot older than ours which are resistant to change. Why change the law of the land to help a couple of hundred people. All candidates are required to sign a form as part of their nomination to the AEC. If they cannot get that right they should be disqualified.

    Kim Fischer Kim Fischer 7:45 pm 13 Feb 18

    Tom Porter I would hazard a guess that more than 50% of Australian citizens are at risk of being disqualified under 44(i) today. Is it fair that if you are born in Australia and have never attempted to take advantage of another country’s laws that you should be ineligible to stand? And if the founding fathers expected Parliament to make their own determinations on eligibility (section 47), then what’s the problem?

    I am just asking for parliament to make section 44 easier to manage. Think about how much time has been wasted on this for no real gain.

Matthew Maddigan Matthew Maddigan 2:09 pm 13 Feb 18

Kim Fischer needs to read the constitution which is what actually stipulates the requirements for being a member of parliament. The constitution can only be amended via a referendum. So her claim of a simple bipartisan agreement will fix the issue is wrong, as you can’t override the constitution through legislation and only the high court can make rulings on constitution law.

    Kim Fischer Kim Fischer 9:51 pm 13 Feb 18

    Section 47 allows parliament to make laws on the qualification or disputed election of Members and Senators. No need for referendum.

    Kim Fischer Kim Fischer 9:57 pm 13 Feb 18

    If this wasn’t the case, Barnaby would have had to pay 100 pounds per day since his election in 2016 and by-election. (Section 46) He didn’t. Key words: ‘Until parliament otherwise provides...’

bikhet bikhet 11:37 am 13 Feb 18

There is nothing to fix. Section 44 isn’t broken. Simply have the politicians obey the law. As the OP says “most Australians agree with the principle of loyalty to Australia that section 44 espouses.”

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